Weekly Update Volume 30, Issue 19

The U.S. Supreme Court reversed the Federal Circuit and held that the United States breached its contracts with two oil companies when, acting under the OBPA, it delayed approval of the companies' exploration plan. The companies paid the government $158 million in return for lease contracts giving them the right to explore for and develop oil off the coast of North Carolina, provided that the companies received exploration and development permission under the OCSLA and the CZMA. While the companies' exploration plan was pending before the DOI, the OBPA was enacted. Because the plan complied with the OCSLA, the DOI had 30 days to approve it. The OBPA, however, prohibited the DOI from approving the exploration plan until the OBPA's requirements were met, which was estimated to take 13 months. The government then suspended the leases. Because the government failed to follow the OCSLA's approval process, the government repudiated the contracts. The new procedural requirements created by the OBPA do not apply to the contracts. Although an OCSLA regulation authorizes a governmental suspension in order to conduct an environmental analysis, the regulation does not apply to analyses mandated by future statutes, such as the OBPA. Therefore, when the government communicated its intent to follow the OBPA, it communicated its intent to violate the contracts. Further, the government's breach was substantial. The timely and fair consideration of the companies' exploration plan under the OCSLA was a necessary and reciprocal obligation under the contracts. Therefore, because the government repudiated the contracts, the companies are entitled to restitution. It is irrelevant whether the contracts would have produced a financial gain or led them to obtain a definite right to explore. Breyer, J. delivered the opinion of the Court. Stevens, J. filed a dissenting opinion. Mobil Oil Exploration & Producing Southeast, Inc. v. United States, No. 99-244 (U.S. June 26, 2000) (39 pp.).

The D.C. Circuit vacated a portion of an EPA regulation in which it determined that oil-bearing wastewaters generated by the petroleum refining industry are solid wastes under RCRA, but upheld the Agency's determination that recovered oil from petrochemical manufacturing facilities is excluded from the definition of solid waste when certain conditions are met. When an industrial by-product may be characterized as discarded or in-process material, EPA's choice of characterization is entitled to deference. In this case, however, EPA failed to provide a rational explanation for its decision to classify oil-bearing wastewaters as solid waste. Conversely, EPA's regulation excluding petrochemical oil was proper. The rule disqualifies from the exclusion oil that contains non-refinable hazardous material in order to prevent "sham recycling." EPA can regulate material "discarded" through sham recycling even though it cannot regulate under RCRA materials that are not discarded. Abandoning a material is discarding it, even if it is labeled as recycling. Additionally, EPA adequately demonstrated that the listed refinery wastes posed a substantial present or potential threat to human health or the environment and, thus, properly listed them as hazardous waste. Moreover, environmental groups lacked standing to challenge EPA's decision not to classify unleaded gas storage tanks sediments (USGTS) as hazardous waste. The groups failed to show the existence or imminent existence of USGTS in the identified landfills, failed to trace any harm to their members that flows from the presence of USGTS in waste streams from the landfills, and failed to establish that their members' concerns are redressable through the listings sought. Similarly, the groups lacked standing under the APA's notice-and-comment requirement to challenge EPA's decision not to regulate solid wastes inserted in the coking process. Finally, the court lacked jurisdiction to consider the environmental groups' contention regarding EPA's decision to defer listing coke products and fines because that decision was a deferral of rulemaking and not a final rule. American Petroleum Institute v. United States Environmental Protection Agency, No. 94-1683 (D.C. Cir. June 27, 2000) (16 pp.).

LICENSE RENEWAL, HYDROELECTRIC PROJECT:

The D.C. Circuit denied petitions to review and upheld FERC's relicensing of a hydroelectric project in north-central Maine. Petitioners argued that FERC's rejection of minimum flow requirements in Back Channel, a branch of the Penobscot River that is blocked from receiving water due to a dam located in the project area, violated the Federal Power Act and NEPA. FERC, however, properly treated the existing conditions at the Back Channel as the baseline "no action" option. The Federal Power Act gives FERC the leeway to conduct its comparative assessment using existing conditions as a baseline. Moreover, FERC gave equal consideration to environmental and recreational (nonpower) values, even though it did not assess them in economic terms. The fact that FERC assigned dollar figures to some costs does not require it to do the same for nonpower benefits. Further, FERC properly considered and rejected the possibility of a brook trout fishery in the Back Channel. Additionally, FERC did not inflate the economic costs the project would incur from increased Back Channel flows. Contrary to petitioners' complaint, FERC considered the alternative of energy conservation. Moreover, FERC did not rely on unsupported claims that the increased cost of Back Channel flows would result in job losses at the project mills. Finally, FERC did not err in failing to make a Native American tribe a consulting party in the renewal process because the tribe did not establish legal title to islands in the river. Conservation Law Foundation v. Federal Energy Regulatory Commission, No. 99-1035 (D.C. Cir. June 23, 2000) (8 pp.).

RCRA, OPEN DUMPING, CITIZEN SUIT, ONGOING VIOLATIONS:

The Second Circuit held that a landowner could not maintain a RCRA citizen suit against its lessee for violating RCRA's open dumping provision because the continued presence of contaminants deposited by the lessee in the past is not an ongoing violation of RCRA. The lessee used and stored chemicals classified as solid and hazardous wastes on the leased property. Some of the chemicals leaked into the surrounding soil, bedrock, and groundwater. The statutory prohibition on open dumps and dumping does not say whether an ongoing violation of the open dumping provisions requires ongoing conduct. However, when RCRA and the regulatory criteria for classifying solid waste disposal facilities and practices are read together, it is clear that they prohibit the act of introducing substances that cause maximum contaminant level (MCL) exceedances, not the exceedances themselves. Therefore, because the complaint does not allege that the lessee is introducing substances that would cause MCL exceedances, the complaint does not plead that the lessee is engaged in open dumping. South Road Associates v. International Business Machines, No. 99-9072 (2d Cir. June 20, 2000) (8 pp.).

The Seventh Circuit reversed and remanded a district court decision that held that PRPs at a contaminated rail yard that leaked oil into a river tributary could not seek contribution under OPA for cleanup costs from the successor to the bankrupt railroad that originally operated the rail yard. The district court held that the bankrupt railroad's abandonment of its rail business constituted liquidation that eliminated any entity that might have been sued. However, the railroad's abandonment of the rail business is not the same as corporate liquidation for bankruptcy purposes. During bankruptcy, the railroad quit the railroad business but retained substantial assets and valuable accumulated tax losses. The resultant corporate entity was renamed and was, avowedly, a continuation of the original railroad. Thus, the railroad did not liquidate, but instead conducted a classic reorganization by restructuring its debt. Therefore, the PRPs can proceed with their contribution claims because as the successor to the railroad that owned or operated the rail yard at the time of its contamination, the successor bears the railroad's liabilities. However, on remand, the railroad's bankruptcy injunction must be examined to determine if reorganization discharged the railroad's pre-bankruptcy debts, such as contribution for environmental liability stemming from pre-bankruptcy activities. Maytag Corp. v. Navistar International Transportation Corp., No. 99-4328 (7th Cir. June 27, 2000) (4 pp.).

CWA, DAM REMOVAL, DISCHARGE OF FILL MATERIAL, CLAIM PRECLUSION:

The Seventh Circuit held that an individual's CWA §§402 and 404 claims against a state for tearing down a dam without a permit are precluded by the individual's state court actions. In state court, the individual challenged the state environmental agency's decision to tear down the dam and claimed that remedial steps should be taken to repair damage done to the river. The state court held that the state environmental agency acted properly and within its discretion in deciding to tear down the dam. The individual then brought suit in federal court against the state and the county that owns the land on which the dam was located claiming violations of CWA §§402 and 404. However, the claims against the state are precluded because the parties in the federal case are the same as the parties in the state case. Additionally, in the federal case the individual is complaining about the procedures used to remove the dam, just as he did in the state case and, therefore, the two cases arise out of the same transaction or series of transactions. Further, the individual's federal claims could have been entertained by the state court had he raised them. In addition, the individual failed to state a cause of action against the county. The county cannot be found guilty of failing to obtain a permit for either the discharge of a pollutant or dredging and filling when it did not take any action other than owning the land. Froebel v. Meyer, No. 98-3925 (7th Cir. June 28, 2000) (17 pp.).

EXPERT WITNESS TESTIMONY, ADMISSIBILITY:

The Tenth Circuit reversed and remanded a district court decision finding a railroad company liable for an employee's injuries because the court improperly admitted expert testimony. Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 23 ELR 20979 (1993), the court acts as a gatekeeper in deciding whether or not to admit expert testimony, and while the court has discretion in the manner in which it conducts its Daubert analysis, there is no discretion regarding the actual performance of the gatekeeper function. The court must make specific findings of fact or hold a discussion on the record, which the district court failed to do in this case. There is not a single explicit statement on the record to indicate that the court ever conducted any form of Daubert analysis whatsoever. Therefore, the case was remanded for a new trial. Goebel v. Denver & Rio Grande Western R.R. Co., No. 99-1143 (10th Cir. June 12, 2000) (6 pp.).

The Tenth Circuit affirmed a magistrate judge's grant of summary judgment to a cleaning solvent manufacturer whose product allegedly caused an apparatus cleaner to suffer from chest pain, burning in his lungs, and shortness of breath. The magistrate judge's denial of further extensions of time for expert witness discovery was not an abuse of discretion. The apparatus cleaner had been granted numerous extensions of time, and he failed to demonstrate that were he given additional time, he would have been able to obtain the experts and expert reports necessary to establish the requisite causation. Further, the grant of summary judgment to the manufacturer was proper. The materials submitted by the apparatus cleaner failed to meet the minimum burden of scientific knowledge of the harmful level of exposure to a chemical plus knowledge that he was exposed to such quantities. Martinez v. American Oil & Supply Co., No. 99-2228 (10th Cir. June 23, 2000) (4 pp.).

DUE PROCESS, ZONING, NEGLIGENCE, SOLID WASTE:

A district court granted in part and denied in part a New York village's motion to dismiss property owners' Fourteenth Amendment due process and negligence claims against the village for failure to address an unlicensed solid waste management facility's violations of the municipal zoning code. It is premature to dismiss the owners' Fourteenth Amendment claim. The owners claim that the village took no action to prevent and abate pollution occurring at the facility despite a duty to do so pursuant to the zoning code. If the owners can demonstrate that the village did not make an effort to enforce the zoning code over the approximately 13 year span in which the facility allegedly operated, they may be able to state a claim under 42 U.S.C. §1983 for due process violations. Moreover, the owners sufficiently stated a claim against the village for failure to train employees. A municipality may be held liable for failure to train its employees only where the failure to train amounts to deliberate indifference to a citizen's constitutional rights. Here, the owners alleged that the village failed to properly train employees on the zoning code and their ability to enforce its provisions, thus leading to the incorrect statements made to the plaintiffs that they could do nothing to remedy the situation at the facility. Further, the individual government officials named in the owners' suit are not entitled to qualified immunity because it was not objectively reasonable for the individual defendants to believe that they were not required to take action of their own because the state environmental agency purportedly was handling the situation. However, the owners' negligence claims against the village must be dismissed. The owners failed to allege that the village owed them a special duty to enforce the zoning code. Leland v. Moran, No. 99-CV-1449 (N.D.N.Y. June 22, 2000) (Hurd, J.) (7 pp.).

DUTY TO DEFEND, DUTY TO INDEMNIFY:

A district court held that two insurers had neither a duty to defend nor to indemnify an insured dry cleaning store owner for soil and groundwater contamination that occurred while their policies containing an absolute pollution exclusion clause were in effect, but that one insurer had a duty to defend the insured under additional policies containing a sudden and accidental exception and a pollution liability clause. The absolute pollution exclusion clauses in both insurers' policies clearly exclude coverage for any damage resulting from the discharge of pollutants, thereby freeing the insurers from any duty to defend or indemnify the insured from damage that occurred during those policy periods. However, one of the insurers also issued a policy containing a pollution exclusion with an exception for sudden and accidental discharges, and allegations in the complaint filed against the insured were sufficient to trigger that insurer's duty to defend under the sudden and accidental exception. The underlying complaint used terms that encompass releases that are sudden and accidental rather than continuous. The insurer also had a duty to defend based on a pollution liability clause contained in a subsequent policy that replaced the previous policy's pollution exclusion clause. Although contamination may have occurred before the subsequent policy went into effect, contamination continued to occur during the subsequent policy period. Moreover, in addition to requesting that the insured perform cleanup on the property, the underlying complaint sought reimbursement costs, which are within the scope of the pollution liability provisions in the policy. Further, because environmental remediation costs constitute damages, the underlying claim falls within the scope of that insurer's policies. Morrow Corp. v. Harleysville Mutual Insurance Co., No. Civ.A. 99-1782-A (E.D. Va. June 22, 2000) (Ellis, J.) (15 pp.).

The Supreme Court of New Jersey held that a local utilities authority was not authorized under the Municipal and Counties Utilities Authorities Law (MCUAL) to charge prior users of the authority's waste disposal facilities an EIC to liquidate debt previously incurred in reliance on a regulatory system declared unconstitutional by the federal courts. In 1970 New Jersey enacted strict legislation that controlled the collection, transportation, and processing of solid waste generated in the state. These regulations were subsequently declared unconstitutional, but not before waste disposal authorities in New Jersey incurred substantial debt to build waste disposal facilities. In order to recoup its debt, a local utilities authority imposed an EIC on all prior users of the authority's waste disposal facilities. Under the MCUAL, which was enacted to regulate water and sewer services, connection fees may be imposed in part to recapture debt service costs. However, this method of debt recovery only applies with respect to sewer and water services, not solid waste services. Moreover, the only statutorily authorized revenue source for an authority providing solid waste services is the solid waste service charge, which may be imposed only on users. Therefore, to construe the MCUAL as authorizing the imposition of an EIC on non-users of the authority's solid waste services would be illogical, anomalous, and incongruent under the understanding and application of the MCUAL during the last four decades. In addition, because a deficiency agreement entered into by the authority and the county was dependent on the validity of the EIC, the agreement is invalid and unenforceable. City of Paterson v. Passaic County Board of Chosen Freeholders, No. A-19-99 (N.J. June 22, 2000) (26 pp.).

PREVENTION OF SIGNIFICANT DETERIORATION, BEST AVAILABLE CONTROL TECHNOLOGY (BACT):

The EPA Environmental Appeals Board (EAB) granted in part and denied in part petitions to review a prevention of significant deterioration permit issued by the Indiana Department of Environmental Management (IDEM) to a steel company for a new steel mill. The EAB remanded the permit so that the IDEM can reconsider its BACT determination for nitrogen oxide (NOx) emissions from the mill's reheat furnace, the form of BACT limitations chosen for NOx and carbon monoxide (CO) emissions from the electric arc furnace, and the proposed steel mill's potential to emit lead. The petitioners raised questions about the IDEM's technical and economic analysis of the available pollution control options for NOx from the mill's reheat furnace. Because the IDEM failed to conduct an adequate cost-effectiveness analysis of an available BACT technology, it must do so, document its findings, and submit those findings for public review. Further, in setting BACT limitations for NOx and CO emissions from the electric arc furnace, the IDEM used an hourly emission limit as opposed to other methods used at 15 similar steel mills across the country, and it failed to adequately explain on the record why the forms of the limits deviated from those used at other steel mills. Therefore, the IDEM must explain its use of the form of the limits or use those utilized at other steel mills. Moreover, the data used by the IDEM in deciding that the mill need not install BACT to control lead emissions was not included in the record. Therefore, the EAB could not determine whether the significance level for lead would be exceeded and, thus, whether BACT for lead should be installed. The IDEM must reconsider its analysis of the steel mill's potential to emit lead and provide in the administrative record documentation of its decisionmaking process and the data upon which its decisions are based. The EAB denied review of all other issues raised. In re Steel Dynamics, Inc., PSD Appeal Nos. 99-4, -5 (EPA EAB June 22, 2000) (112 pp.).

The EPA Environmental Appeals Board affirmed an administrative law judge's (ALJ's) assessment of a $165,000 penalty against a property owner whose storage and handling of PCBs violated TSCA. The ALJ did not err in either its decision to consult EPA's PCB penalty policy or in the manner in which the policy was applied. The ALJ did not ignore TSCA by treating the policy as if it were law. The ALJ articulated the statutory factors set forth in TSCA and analyzed each factor sequentially using the PCB penalty policy as a guide. Further, the owner was not entitled to submit additional evidence relating to the nature, circumstances, extent, and gravity of the violation. Before the ALJ's penalty assessment, the owner conceded that there were no material facts in dispute on which a penalty might be based. In the interests of efficient administration of the case, the owner was appropriately held to its earlier concessions. Moreover, the ALJ did not ignore TSCA's penalty mitigation factors and did not commit an abuse of discretion in declining to reduce the penalty because of other factors as justice may require. The ALJ considered the owner's purported indicia of good faith and found them to be outweighed by evidence that the owner had acted irresponsibly. In addition, the ALJ did not err in ruling that the owner's inability to pay would not be considered as a mitigating factor. The owner failed to notify EPA that it would assert inability to pay, and when it did finally argue inability to pay, it failed to produce evidence of such inability. In re Spitzer Great Lakes Ltd., TSCA Appeal No. 99-3 (EPA EAB June 30, 2000) (30 pp).

SDWA, UNDERGROUND INJECTION CONTROL (UIC) PERMIT:

The EPA Environmental Appeals Board held that although EPA Region 9 had the authority to require the operator of a geothermal power plant in Pahoa, Hawaii, to obtain a federal UIC permit, the permit must be remanded because EPA failed to adequately justify certain conditions placed on the permit. Although the aquifer underlying the plant is not associated with a specific public water system, it meets the regulatory definition of an underground source of drinking water because it could potentially supply a public water system. Moreover, EPA's concerns regarding prior blowouts at the plant and the failure of the state-issued permit to require adequate financial assurances for shutting and abandoning the injunction wells provide sufficient support for requiring a permit application. EPA, therefore, was authorized under the SDWA to require the operator to apply for a permit. In addition, EPA did not abuse its discretion in issuing an individual rather than an area permit to the operator. Nevertheless, the permit was remanded because EPA failed to adequately explain why certain conditions placed on the permit were necessary. On remand, EPA must provide a sufficient rationale for including conditions on the permit concerning a 600-foot setback requirement, an emergency response plan, the notification of emergency responders, additional monitoring and reporting, a plugging and abandonment plan, and the notification of non-permitted releases. Otherwise, these conditions must be removed from the permit. EPA must also delete a permit condition requiring the operators to maintain a flow transmitter on each well that provides information directly to the plant's control room because this condition was erroneously added to the permit. All other issues raised by the petitioners, however, were denied review. In re Puna Geothermal Venture, UIC Appeal Nos. 99-2 et al. (EPA EAB June 27, 2000) (54 pp.).

EPA announced the availability of a proposed Project XL final project agreement for the Progressive Auto Insurance Company that will determine the extent to which the Progressive Pay-as-you-Drive Auto Insurance Program has an effect on the environment. 65 FR 39614 (6/27/00).

EPA announced that it will revise the Interim Guidance on the CERCLA §101(10)(H) Federally Permitted Release Definition for Certain Air Emissions. 65 FR 39615 (6/27/00).

EPA allocated essential-use allowances for stratospheric ozone depleting substances for use in medical devices and for use in the Space Shuttle Rockets and Titan Rockets for the year 2000 control period. 65 FR 40524 (6/30/00).

EPA withdrew an amendment from the May 8, 2000, direct final rule for NESHAPs for Polyether Polyols Production, Synthetic Organic Chemical Manufacturing Industry, Epoxy Resins Production and Non-Nylon Polyamides Production, and Petroleum Refineries that concerns the definition of "equipment leak" in the Petroleum Refineries NESHAP. 65 FR 41594 (7/6/00).

DRINKING WATER:

EPA proposed to amend the underground injection control regulations that would affect specific class I municipal wells in Florida. 65 FR 42233 (7/7/00).

ENDANGERED SPECIES:

The Forest Service and the FWS established regulations for seasons, harvest limits, methods, and means related to the taking of wildlife for subsistence uses during the 2000-2001 regulatory year. 65 FR 40729 (6/30/00).

DOI announced the availability of the Final Report and Recommendations of the Working Group on the Endangered Species Act and Indian Water Rights. 65 FR 41709 (7/6/00).

EPA entered into a proposed purchaser agreement under CERLCA in connection with the North Penn Area 7 Superfund site in Montgomery County, Pa. 65 FR 39617 (6/27/00).

EPA entered into an administrative order on consent under CERCLA §§104, 106(a), 107, and 122 in connection with the Landia Chemical Company site in Lakeland, Fla. 65 FR 40093 (6/29/00).

EPA proposed to enter into two identical prospective purchaser agreements under CERCLA in connection with Sharon Steel Farrell Works Superfund site in Farrell, Pa. 65 FR 41071 (7/3/00).

EPA announced that it granted an exemption from the RCRA land disposal restrictions to E.I. du Pont de Nemours & Company for five class I injection wells located at its White Pigment and Mineral Products DeLisle Plant in DeLisle, Miss. 65 FR 39387 (6/26/00).

EPA announced the availability of a revised version of the pesticide science policy document entitled Guidance for Refining Anticipated Residue Estimates for Use in Acute Dietary Probabilistic Risk Assessment. 65 FR 39147 (6/23/00).

EPA announced the availability of the revised risk assessments and related documents for the organophosphate pesticide mevinphos. 65 FR 40631 (6/30/00).

EPA announced the availability of a draft science policy paper entitled Proposed Guidance on Cumulative Risk Assessment of Pesticide Chemicals That Have a Common Mechanism of Toxicity. 65 FR 40644 (6/30/00).

RIGHT-TO-KNOW:

EPA deleted phosphoric acid from the list of chemicals subject to reporting requirements under EPCRA §313 and Pollution Prevention Act §6607 in response to a D.C. District Court ruling that phosphoric acid does not meet EPCRA §313(d)(2)(C) listing criterion. 65 FR 39552 (6/27/00).

EPA announced the availability of validation data for the pollutants included in its January 13, 1999, proposal to promulgate effluent limitations guidelines, pretreatment standards, and new source performance standards for the centralized waste treatment point source category.65 FR 41391 (7/5/00).

EPA issued a notice of a draft NPDES general permit for water treatment facility discharges to certain waters of the states of Maine, Massachusetts, and New Hampshire. 65 FR 40650 (6/30/00).

U.S. v. Western Publishing Co., No. 94-CV-1247 (N.D.N.Y. June 14, 2000) (settling CERCLA defendants must pay $50,000 in past response costs incurred by the United States and certain prior settling parties currently performing EPA's selected remedy at the Hertel Landfill Superfund site in the Hamlet of Clintondale, N.Y.; a second group of defendants must pay $2,000 in past state response costs and must sell their property, the proceeds of which will go to the United States and the performing parties), 65 FR 40126 (6/29/00);

U.S. v. Browning-Ferris Industries Chemical Services, Inc., No. 1:00 CV-386 (E.D. Tex. June 12, 2000) (settling CERCLA defendants must pay $605,000 to the United States and Texas for natural resource damages related to the release of hazardous substances from the Bailey Waste Disposal site in Bridge City, Tex.), 65 FR 40692 (6/30/00);

U.S. v. City of New York, No. 99 Civ. 2207 (LAK) (S.D.N.Y. June 12, 2000) (CAA defendants that disposed of appliances collected from city residents in a manner that depletes the stratospheric ozone layer must pay a $1 million civil penalty and perform supplemental environmental projects worth $3 million that will improve the air quality of New York City), 65 FR 40692 (6/30/00);

Mobil Oil Corp. v. U.S., No. 99-1467-A (E.D. Va. June 26, 2000) (CERCLA defendant will pay $264,000 in past U.S. response costs incurred at the Stibnite Mining area in Valley County, Idaho, and the United States must pay $1.55 million in response costs incurred by the CERCLA defendant at the site), 65 FR 42030 (7/7/00).

Proposed SIP revisions regarding implementation of the one-hour ozone standard in the Birmingham nonattainment area. Gasoline sulfur content and Reid Vapor Pressure controls, as well as NOx emission controls on electric utility plants, are among the proposed control strategies. Public hearing on Aug. 16; comments due Aug. 18. Details at http://www.adem.state.al.us/phdiv3.html

Alabama Disposal Solution Landfill, LLC, for permit to operate a municipal solid waste landfill in Lowndes County. The service area would consist of the entire state except Mobile and Jefferson counties. Comments due July 12. Details at http://www.adem.state.al.us/5adstall.html

Regarding "Draft Report: Planned Air Pollution Research Fiscal Year 2000-2001." This item will be considered at a 2-day meeting of the board that will commence at 9:30 a.m. on July 20, 2000. The notice and the draft report are available at: http://www.arb.ca.gov/research/apr/plan/plan.htm

July 27 workshop regarding proposed revisions to the Department's Standard Operating Procedures for Field and Laboratory Operations. The Department proposes to delete all laboratory procedures from the document.

Adoption by reference of Fla. Rule 40E-4.091, regarding side slope requirements for water retention/detention and stormwater attenuation areas.

Proposed Regulation-Wetlands, Surface Waters

Amendments would establish time frame within which the District must act in evaluating a Petition for a Formal Determination of Wetlands and Other Surface Waters. Public hearing, if requested, will be held after subsequent notice.

Proposed amendments to Chapter 391-3-1, Procedures for Testing and Monitoring Sources of Air Pollutants, and amendments to the SIP for attaining the ozone standard in the Atlanta Ozone Nonattainment Area. Public hearing July 12; will be taken up at July 26 meeting of Board of Natural Resources. For details, see http://www.ganet.org/dnr/environ/

Proposed revisions to Part 742 rules (the "TACO" regulations) accepted for hearing May 18. At least two substantive amendments, concerning the addition of MTBE as a contaminant to be tested for, and the replacement of existing Subpart J provisions dealing with deed restrictions as institutional controls. The new instrument will be entitled "Environmental Land Use Controls", in response to H.B. 3457 (2000) and the Illinois EPA's determination that it could not employ "No Further Remediation" letters as institutional controls for RCRA sites or those with off-site contamination at UST sites. See http://www.ipcb.state.il.us/news/news.htm

New legislation requires increased fees, which will be placed in the Hazardous Waste Fund. The Fund is used for purposes other than hazardous waste transportation-related costs, such as site cleanup. Opponents of the legislation contend that it is preempted by the HMTA, as amended. See http://www.house.state.mo.us/bills00/bills00/sb577.htm

Regulations are being drafted that would create a NOx trading program in Houston-Galveston nonattainment area and would reduce the duration of emission reduction credits from ten to five years. A September comment period is expected.